Lisa Dancaster: University of Kwa-Zulu Natal

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1 Lisa Dancaster: University of Kwa-Zulu NatalLegislative Provisions for the Combination of Work and Care in South Africa.Lisa Dancaster: University of Kwa-Zulu Natal

2 Over 40% of the population live in Gauteng and KwaZulu Natal9 ProvincesOver 40% of the population live in Gauteng and KwaZulu Natal

3 Population: Facts and Figures:2008 estimates (Statistics South Africa)Total PopulationPopulation Groups:African – 79,2%Coloured – 9%White – 9,2%Asian – 2,6%South Africa has one of the continent’s highest percentage of older inhabitants. In % of the population was over the age of 50 and 6.8 % and 2.8 % were over 60 and over 70 years respectively. In 2025 the percentage of the population estimated to be over 50 is 18% and 10.8% and 5.1% are estimated to be over 60 and 70 years respectively (Kinsella & Ferreira, 1997). Ageing does however differ between the different population groups. In the white population group the ageing structure resembles that of some of the world’s more developed countries with over a quarter of the white population being over 50 years old (Kinsella and Ferreira, 1997). This corresponds with 11% of Africans in the same age group, slightly less than for Asians and Coloureds (Kinsella & Ferreira, 1997).

5 South African Differences:Two areas in which the South African experience differs from the countries included in the current Network review:Labour market characteristics and limitations of the reach of the law; andChallenges to assumptions that traditionally exist about caregiving.This is in contrast to a more prescriptive approach to the regulation of other industrial relations issues such as affirmative action and skills development.

6 Differences: Limitations of the LawUnemployment, informal sector employment, lack of adequate enforcement diminish the impact of the law.

9 Labour Force Distribution by Sector and GenderLabour Force: (2008 StatsSA)The Labour Force figures are larger than the total of sector of employment figures because unemployment accounts for from the total labour force.Statistics South Africa estimates in 2007 showed that people were employed as domestic workers out of a 917 ooo women employed as domestic workers (2008) – only men. This sector of employment experienced the largest employment gain of all the employment sectors in the period March 2006 – March 2007 (Statistics South Africa, 2007). In the larger pool of poor (mainly African) households there are individuals who are prepared to carry out this menial and relatively poorly paid work (Budlender & Bosch, 2002).

10 Informal Economy Characteristics: Sept 2008Portion of the labour force: 17% (excludes 1 million domestic workers and around involved in subsistence agriculture)Sector: Just under 50% of SA informal enterprises are involved in tradingRace: 90% of those working in the informal economy are from the African population group;Sex: There are a disproportionate number of women working informally. Women dominate segments of the informal economy where remuneration is low.

12 Challenging Assumptions about Caregiving in South AfricaBudlender and Lund, 2007.1. That the majority of children live with their mother and father. 2. That most children are born within marriage. 3. That younger and middle-aged adults are providers of financial, physical and emotional care (particularly for the young and aged), rather than recipients of care.4. That men will assist in bearing the care burden associated with a crisis such as that caused by the AIDS pandemic.

13 HIV/AIDSHIV prevalence estimates by province among ante-natal clinic attendees, Source: Dept. of Health 2008.28% HIV prevalence – 2008 estimate from 2007 anti-natal surveys. In 2005 this was 30.2% so it has declined.National-level HIV prevalence varies markedly by population group, sex and age group. In 2005, Africans were found to be most affected (of the order of six to seven times higher than non-Africans), whilst females aged were three to four times more likely to be HIV positive than males in the same age group (National Strategic Plan ) .Two groups of persons can be identified as requiring care as a result of HIV/AIDS: people living with HIV/AIDS (PLWHA); and those children orphaned by the death of both parents due to HIV/AIDS. In South Africa, for those people living with HIV/AIDS, there has been a gradual shift in the model of care from hospital care to home-based care because many hospitals do not have adequate staff and space to care for HIV patients (Akintola 2004).The extent of the need for care for children orphaned by HIV/AIDS is highlighted by statistics estimating that by 2015 around one third of children under the age of 18 in South Africa will have lost one or both parents (Bradshaw et al as cited in Freeman and Nkomo, 2006).

16 Similarities: Women and Part-Time Work:Women more likely to be found in part-time work21% of women work less than 40 hours a week compared to 10,25% of men (StatsSA, 2008).Evidence on the effect of children on the participation of women in the South African labour force indicates that the presence of children (under six years) in the household has a negative effect on the probability of women’s participation with a far greater negative effect on White and Asian women, who are almost eight percent less likely to participate in the labour market, than African and Coloured women, where the effect is negligible (Winter 1999).. Significantly for work-family studies is the fact that individuals who work part time are also more likely to live in households with children than full-time workers, and in particular, in households with children aged 7 to 14 years (Muller, 2005).

18 International Obligations:South Africa ratified CEDAW in 1995.Beijing Platform for Action (BPFA), which was adopted at the United Nations Fourth World Conference on Women in 1995.SADC Charter of Fundamental Social Rights of Workers, adopted in August 2003 which provides for equal treatment of workers and reconciliation of work and family obligations.The AU Solemn Declaration on Gender Equality in Africa in This Declaration is an African instrument for promoting gender equality and women's empowerment.

19 Work-Family Legislative Provisions in South AfricaLeave entitlement in South Africa is primarily governed by one main statute that applies to the whole country: the Basic Conditions of Employment Act (BCEA).It sets minimum standards that can be improved upon through collective bargaining, in forums called bargaining councils.

20 Maternity Leave: DurationBasic Conditions of Employment Act provides for a minimum period of four consecutive months maternity leave with job security guaranteed through the provisions regulating automatically unfair dismissals in the Labour Relations Act.Maternity leave can be taken any time from four weeks before the expected date of birth. An employee cannot work for six weeks after the birth.

21 Maternity Leave: PaymentEmployee’s on maternity leave are able to claim up to 17,32 weeks payment from Unemployment Insurance with the percentage payment related to earnings. Sliding scale from 31% to 59% of earnings.Compulsory contributions to the UIF are made by employers and employees. Each contribute an amount of 1 per cent of the employee’s remuneration.

22 Maternity Leave: ExclusionsIndependent contractors and self-employed women are not eligible for statutory maternity leave.An employee is not eligible for statutory maternity leave if working for less than 24 hours a month for their employer.Public sector employees get 4 months paid leave in terms of a 2007 Determination in respect of leave in the public service. Public sector employees account for approximately 13 – 14% of formal employment in South Africa.

23 Minimal Improvements on Legislated Maternity Leave in Collective Agreements:Survey of 361 enterprise level agreements and 31 bargaining council agreements found that only about 7 per cent of agreements specifically provided for additional unpaid maternity leave of about two months (Elsley, 2007).Only 4,9 per cent of the bargaining council agreements and 3 per cent of enterprise level agreements provide on average between 25 per cent and 33 per cent of payment towards maternity leave by employers (Benjamin, 2007).

24 Adoption Leave and Pay:There is no statutory leave for adoption of a child. There is however a right to claim unemployment insurance benefits for time off work for adoption purposes.Only one parent can make application for adoption benefits and the child adopted must be under two years of age.Employees in the public service are entitled to 45 working days when adopting a child under the age of two years.

25 Paternity Leave:South Africa has no separate legislative provision governing paternity leave.Father’s who wish to take leave for the birth of a child have to utilize their family responsibility leave.

26 Family Responsibility Leave:A minimum of three days paid leave per twelve month cycle to attend to the birth or illness of a child or death of a stipulated family member.Employee must have worked for his/her employer for longer than four months and work at least four days per week.

27 Family Responsibility Leave:Public service employees: three days family responsibility leave for the birth of a child of a spouse or life partner, or in the event of the sickness of a child, spouse or life partner. Five days leave per annual leave cycle for the death of a spouse, life partner, child or immediate family member.Total family responsibility leave cannot exceed five days.

28 Parental / Carers Leave:No statutory entitlement.No statutory entitlement to career breaks.Employees in the public service are entitled to extend their maternity leave by 184 day’s unpaid leave.

29 Flexible Work Arrangements:No legislated right for employees to request flexible working arrangements.‘Family responsibility’ discrimination protected in the Employment Equity Act but no cases claiming FRD to date.

30 Codes of Good Practice:Code of Good Practice on the Protection of Employees during Pregnancy and After the Birth of a Child.Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices.Code of Good Practice on Arrangement of Working Time

31 ConclusionCollective bargaining appears to have achieved little in the way of improvements on legislated minima;The way forward: Revision of ‘family responsibility leave’. Introduce a seperate legislative right to paternity leave and carers leave;Consider the introduction of the legislative right to request flexible working arrangements .